2012 | 4(111) | 77-99
Article title

Sądy konstytucyjne a procedura prejudycjalna przed Trybunałem Sprawiedliwości Unii Europejskiej

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In this article, the author provides an analysis of judicial practice of constitutional courts in EU Member States in relation to their use of preliminary questions. She declares that, in the context of taking position concerning their own status under Article 267(3) TFEU, constitutional courts of Member States may be divided into four categories. The first category is composed of those courts which have made at least one reference for a preliminary ruling, thereby recognizing themselves as courts within the meaning of Article 267. The second category consists of courts which, initially, explicitly considered that they didn’t match the definition of a court under Article 267, established by the Luxembourg Case Law and, then, changed their position . The third category is made up of courts which, even if recognizing themselves as courts within the meaning of Article 267(3) TFEU, do not adopt the procedure for preliminary ruling in practice. The fourth group are those constitutional court which have not taken clear position on this issue. In the article, a narrow definition of a counstitutional court is used. According to this definition a constitutional court is a separate and independent State authority whose main function is to review the constiutionality of laws. This means that, in that sense, only courts and tribunals functioning within the system of centralized review of the constitutionality of laws may be considered as constitutional courts. The author argues that differences in the positions of individual constitutional courts on making reference for preliminary ruling result not only from their attitude to the relation between the constitutional court and the Court of Justice, which means the defence of law to the "last word" or a strongly co-operative attitude to the Court of Justice. They are also a consequence of the diversity of the systems for review of the constitutionality of laws in different Member States. The latter reason is especially important when considering the individual elements of the definition adopted in the Court of Justice case-law. The question of whether the constitutional courts of the Member States are courts within the meaning of Article 267(3) TFEU, has a significant impact on shaping current and future relationship between the national constitutional legal system and the Court of Justice. When formulating the criteria for the definition of the court under Article 267 TFEU, the Luxembourg Court does not state that any constitutional court, regardless of its location within the system of State bodies of the Member State concerned, is the court of last resort within the meaning of art. 267 TFEU. However, accepting references for preliminary ruling from all national constitutional courts that have decided to make such reference, the Court not only approves, but also encourages other constitutional courts to take action to this aim. The concept, well established in the jurisprudence of the ECJ (Court of Justice), of state liability for failure by the national court of last instance to make reference for a preliminary ruling, pose a warning to those constitutional courts that explicitly deny the possibility of using Article 267 TFEU, or , even if recognizing themselves as a court within the meaning of Article 267(3), do not make reference for preliminary ruling when the opportunity to do so arises. The author notes that a diverse practice of constitutional courts of Member States in the use of the preliminary ruling procedure should not necessarily be judged negatively. Certainly, the Court of Justice will strive - as much as possible - to standardize this practice. Consistent application of Article 267 TFEU is part of a broadly defined concept of homogeneity in the application of European law by national courts. However, differences in attitudes of individual constitutional courts do not merely result from a fear of procedural submission to the Cour of Justice, but is deeply rooted in the constitutional traditions of the country concerned, the role of the Constitutional Court in the system of government, the scope of its cognition and modes for initiating proceedings before that body, should be allowed. For since there is no single model of constitutional justice within the EU legal space, differences in defining by individual constitutional courts of their role in creating procedural dialogue with the Court of Justice are its natural consequence.
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  • Nicolaus Copernicus University in Toruń
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Publication order reference
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